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10 Aug 2014 - to Min Bleijie - Misclassification

10 August 2014

You can access the original letter here
Mr. Jarrod Bleijie
Attorney General
GPO Box 149
Brisbane QLD 4001


Dear Jarrod

Your letter of 1 August 2014 passing comment on, and interpretation of, the application of the BCCM Act 'standard' module to residential buildings is, to put it plainly, both confusing and distressing to the members of the Unit Owners Association Queensland (UOAQ).

Confusing because your stated understanding of 'residential' is contrary to the long held UOAQ and general community understanding of the definition of the word 'residential'.

The BCCM Act 1997 does not define 'residential' but does define 'residential property'. The definition of 'residential property' refers the reader to BCCM Act Chapter 5 dealing with the sale of lots. Chapter 5 refers the reader to the Property Agents and Motor Dealers Act 2000, section 17. This Act has been superseded by the Property Occupations Act 2014, and section 21 of that act states:

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2 Aug 2014 to Deputy Director General David Ford re Misclassification

via email
from Wayne Stevens to David Ford


Subject: Correspondence from the Attorney-General and Minister for Justice

Dear David


The issue we are debating is to provide surety to purchasers who wish to live in residential property not to be affected by short term rental. The recent Griffith University study went to great pains to explore the frustration that purchasers experienced·clarifying the classification issue, then ultimately found that short term rentals were introduced into their property. The standard module·provides the means for that surety and restricts management rights agreements to 10 years.

I will draw to your attention the fact that had the AG’s interpretation of the intent of the BCCM Act been applied from 1997, there would be 100%· accommodation module buildings and really no need for the standard module to cover residential buildings.

The other point that must be clarified is that the UOAQ has never suggested that the BCCM Act should override planning principles. The UOAQ has expressed deep concern that the Queensland Government has chosen to misinterpret the definitions of class 2 and class 3 buildings allowing class 2 residential buildings to be used for short term accommodation that under the NCC should be class 3. This in turn allows misallocation of the BCCM module.

The response from the Attorney is most concerning to the UOAQ. · Notwithstanding the attached, the BCCM Act has since 1997·understood that Residential lots were places of long term residence and Accommodation lots were places of transient or long term residence.·Thus there has been no confusion as to the meaning of residential and accommodation for 17 years as demonstrated in the adjudication for Carrington Court quoted below; however, it now becomes convenient, in the interests of developers and jeopardy of unit owners, to introduce doubt and confusion.· The tone of the correspondence· clearly indicates· bias towards developers and caretakers obtaining 25 year contracts at the expense of unit owners.

1 Aug 2014 from Min Bleijie - Misclassification

You can view the original letter here

Mr Wayne Stevens
President
Unit Owners Association of Queensland

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Dear Mr Stevens

Thank you for your email dated 8 July 2014 enclosing two letters regarding developers applying the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (the Accommodation Module) to new community titles schemes.

I note your view that the Accommodation Module should not be available to community titles schemes that have been described as 'residential' by the developer, on the basis that the term 'residential' excludes the use of lots for short-term accommodation purposes.

However, the body corporate legislation specifically contemplates a lot being used for 'short term residential purposes'. For example, the definition of ‘accommodation lot’ for the purposes of the Accommodation Module includes lots that are (or intended to be) available to be the subject of a lease or letting for accommodation ‘for long or short term residential purposes'. Therefore, the description of lots as 'residential' does not prevent the Accommodation Module applying to a community titles scheme provided the scheme otherwise meets the prescribed eligibility criteria.

Of course, that is not to suggest that a developer or selling agent can mislead or deceive a prospective purchaser about the nature or characteristics of a proposed community titles scheme.

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08 Jul 2014 to Min. Bleijie - Misclassification - Local Govnt Responsibility

 

You can view the original letter here

Mr. Jarrod Bleijie
Attorney General
GPO Box 149
Brisbane QLD 4001

Dear Jarrod

The Unit Owners Association Queensland (UOAQ) is becoming increasingly confused with Queensland Government legislation and the specific department or level of Government responsible for implementation and enforcement of sections of the Body Corporate and Community Management Act 1997 (BCCMA). The UOAQ has requested clarification from the Attorney General who is responsible for the BCCMA, and under standard protocols would be responsible for enforcement of legislation for which he is responsible. However, ·advice from the Attorney General places the responsibility with the Local Government authority.

The purpose of this letter is to request the Minister for Local Government to clarify the responsibility for enforcement of the requirements of the BCCMA and, or, advise Local Government of their responsibility to observe and enforce the requirements of the BCCMA. The UOAQ understands that this may require liaison with other Government Departments to establish the lines of communication and responsibility.

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08 Jul 2014 to Min Bleijie - Misclassification - Local Government Responsibility

 

You can view the original letter here

Mr. Jarrod Bleijie
Attorney General
GPO Box 149
Brisbane QLD 4001

Dear Jarrod

Thank you for your response dated 24 June 20014 to my previous letter.

My Association has serious concerns with developers applying Accommodation Module (AM), when those developers are fully aware that their developments do not qualify. Section 3 of the AM states the circumstances that determine its application.

Adjudicator’s order of Carrington Court - Main Beach [2005] QBCCMCmr 710 (15 December 2005) clarifies the meaning of “predominately” as intended in section 3 of the AM. This adjudicator’s order is attached for your convenience.

The attached document: LAND AND ENVIRONMENT COURT CLARIFIES MEANING OF “RESIDENTIAL BUILDINGS.” ·(19th July 2012) provides a useful definition of “residential”.

The issue I reported in my letter of 30 November 2013 that related to the development of V77, provides clear evidence that demonstrates the developer applying AM to the development, yet within the disclosure statements, the developer represents that the development is residential. For the AM to apply to the V77 development there is a requirement for the development to be predominately accommodation. As the developer has represented in the disclosure statements, the development will be residential, it should not apply AM. Future Purchasers should not be exposed to any confusion when purchasing a unit in a residential development having established a clear belief that they are buying into a community with owners of like intentions. That is to reside in an exclusively residential property without any fear of short term rentals. A property represented as a residential development with no accommodation units as determined by Section 3 of the AM, and that is able or permitted to be nominated AM creates that confusion. In the interests of consumer protection this confusion should be clarified to the offending developers.

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24 Jun from Min. Bleijie - Misclassification - BCCM Act change

 

You can view the original letter here

Mr. Wayne Stevens
President
Unit Owners Association of Queensland
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Dear Mr Stevens

Thank you for your further letter dated 23 May 2014 regarding the application of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (the Accommodation Module) to proposed community titles schemes, and the use of class 2 buildings for short term rental purposes.

I thank you also for providing me with a copy of the research study titled, Residents’ Experiences in Condominiums: ·A Case Study of Australian Apartment Living.

I note your particular concern is with the Accommodation Module being applied to new community titles schemes by developers, even if the building is to be classified as a class 2 building under the Building Code of Australia.

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23 May to Min. Bleijie - Misclassification

 

You can view the original letter here

Mr. Jarrod Bleijie
Attorney General
GPO Box 149
Brisbane QLD 4001

Dear Jarrod,

Re: Misclassification of Standard or Accommodation Modules April 2014

Thank you for your email dated 13 May 2014 in response to mine of April 9.

Subsequent to sending my email I received a copy of a study produced by Griffith University titled: “Residents Experiences in Condominiums: A Case Study of Australian Apartment Living”, which on receipt, I directed to your good self and referred to it as supporting the argument that I had made in my email. In your response you made no reference to this case study, and I can only assume that it was not received. As this document is of significant importance to the issues being represented, I direct it to you a second time.

Of particular importance are pages 5 & 6 which detail the conflict to participants by the misclassifications and lack of clarity of building use, and pages 8 to 10 detailing confusion, and misrepresentation in the unit purchasing process. These issues, coupled with the Government’s failure to clarify and enforce Australian Building Codes have contributed to the continuing misuse of Class 2 buildings for short term rental. The example of the V77 development, described by the developer as residential, yet classified Accommodation Module, as history demonstrates, will lead to unwanted short term rentals at that development. You suggest that the Accommodation Module “clearly states” that for it to apply, lots in the scheme must be predominately accommodation lots. If a development is described as residential by the developer and can be classified Accommodation Module by that same developer, the clarity you suggest is not evident. As developers are clearly confused, that clarity must be provided as part of the current review to stop these deliberate misclassifications to enhance the developer’s reward at the ongoing cost to owners through inflated levies for at least 25 years.

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13 May from Min. Bleijie - Misclassification

 

You can view the original letter here

Mr. Wayne Stevens
President
Unit Owners Association of Queensland
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Dear Mr. Stevens,

Thank you for your email dated 9 April 2014 regarding the application, by developers, of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 to residential community titles schemes.

I understand from your email, and your previous correspondence of 30 November2013, that the Unit Owners Association of Queensland has concerns about developers applying the Accommodation Module to new residential community titles schemes instead of another regulation module, particularly because the Accommodation Module allows for 25 year management rights agreements.

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09 Apr to Min. Bleijie - Misclassification

 

You can view the original letter here

Mr. Jarrod Bleijie
Attorney General
GPO Box 149
Brisbane QLD 4001

Dear Jarrod,

I refer you to my letter of 30 November 2013 and your response dated 23 January 2014.

My letter raised UOAQ concerns and presented evidence regarding the application by developers of applying Accommodation Module to residential developments.

This practice disadvantages the future unit owners of a development as it provides the developer with the means to access a 25 year management agreement, as opposed to a 10 year agreement under Standard Module, for residential schemes. In doing so, the developer will impose a 25 year obligation upon future owners, to maintain excessive management fee costs without the knowledge or approval of those future owners. The Arrow asset management case in NSW prevents this conduct in that state and in USA this conduct is considered unconscionable

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23 Jan from Min. Bleijie - Misclassification

 

You can view original letter here

Mr Wayne Stevens
President
Unit Owners Association of Queensland
GPO Box 2359
BRISBANE ·QLD ·4001

Dear Mr Stevens,

Thank you for your letter dated November 2013 regarding the application of regulation modules under the Body Corporate and Community Management Act 1997 (the BCCM Act) to proposed community titles schemes and the consultation process for the four Bills intended to replace the Property Agents and Motor Dealers Act 2000 (PAMD Act). I apologise for the delay in responding.

I note from your letter that you are concerned about the Body Corporate and Community Management (Accommodation Module) Regulation 2008 being applied to a particular proposed community titles scheme named 'V77', and to other proposed schemes as a practice by developers more generally.

I also note that the Unit Owners Association of Queensland raised this and other concerns about the management rights framework under the BCCM Act, including the maximum length of management rights contracts, in the association's submission to the management rights review.

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30 Nov to Min. Bleijie - Misclassification

30 November 2013

You can view the original letter here

Mr. Jarrod Bleijie
Attorney General
GPO Box 149
Brisbane QLD 4001

Dear Jarrod,

The attached document provides clear evidence of deliberate miss interpretation of the BCCM Act to the disadvantage of unit owners perpetrated by experienced and respected industry professionals, by incorrectly applying the Accommodation Module to access 25 year Management Rights benefits delivering an increased sale reward. This practice has been constantly complained of by UOAQ to Government and is part of its submissions in the current Management Rights review.

At Part 2 Disclosure Statement, the Regulation module to apply to the scheme is Accommodation module.At Part 4 under Development it states:
“It is intended that a residential apartment building will be constructed on the land.”

and under Use and maintenance of lots and Scheme Land:
“The scheme is intended to operate as a residential community.

All lots in the scheme are to be used for residential purposes.”For the Accommodation module to apply to a scheme the module states:
3 Application of this regulation—Act, s 21 [SM, s 3]
(1) This regulation is a regulation module for the Act.
(2) For this regulation to apply to a community titles scheme—
(a) the lots included in the scheme must be predominantly accommodation lots;
(3) accommodation lot means a lot that is either or both of the following—
(a) the subject of a lease or letting for accommodation for long or short term residential purposes, or immediately available to be the subject of a lease or letting for accommodation for long or short term residential purposes
(b) part of a hotel.

It seems clear that the Standard module should apply to the V77 Community Title Scheme.

There is continuing concern within the UOAQ regarding the miss classification of modules by developers and the inappropriate movement from Standard to Accommodation modules through mischievous endeavours of Caretakers on unknowing owners, and the lack of clarity by the Commissioner of BCCM to insure that the intension of the legislation in this area is respected.
I attach pervious statement made by UOAQ on this topic for your information.

The UOAQ calls on the Government to immediately take steps to prevent the continuing miss classification of Community Title Schemes for the inappropriate purpose of accessing the ability to determine 25 year Management Rights agreements.

Last week The Agents Bills Team circulated a document with the subject:
Introduction into the Queensland Parliament, Bills to split the Property Agents and Motor Dealers Act 2000 into four separate Acts - please note these Bills have not yet been debated or passed by the Queensland Parliament.

That document included your introductory speech to Parliament that detailed the following inclusions:

“The bill removes the requirement for a resident letting agent to satisfy the chief executive that they have body corporate approval and that they will live onsite to be eligible for a licence. In addition, under the bill resident letting agents will no longer be limited to managing only one building complex.”

“The government has worked closely with industry and peak stakeholder bodies to identify and implement new red tape reduction measures.

As President of The Unit Owners Association of Queensland, the association regarded as the peak stakeholder representing unit owners since 1978, I can state that your statement of working with peak stakeholder bodies is at best an untruth and at worst misleading the Parliament. No consultation or discussion has taken place with our Association on these topics, to the contrary, my Association recently sought clarification on the progress of the ongoing Management Rights Review, and were advised that the Ministers priority for the new year was Lot Entitlements and that the continuing review of Management Rights would follow later next year. We now find 2 fundamental components of Management Rights in on site living and limiting management to a single complex are being introduced unannounced.

The UOAQ seeks to prevent any amendment to the BCCM Act without full and appropriate consultation with UOAQ.
Yours sincerely.


Wayne Stevens
President

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